constitutional law essay

Common Law Reasoning and Institutions

‘Judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.’ Discuss

As MacCormick states “To understand case-law…is to understand how it is that particular decisions by particular judges concerning particular parties to particular cases can be used in the construction of general rules applying to the actions and transactions of persons at large [1] . (1987:155)".

The doctrine of binding precedent or stare decisis lies at the heart of the English legal system. The doctrine refers to the fact that, within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower than it in that hierarchy. [2] There are two types of precedent binding and persuasive. The doctrine of binding precedent entails that when a rule has been established it has to be followed in defiance of any inconveniences. The crux of this principle is that, like cases should be dealt with and decided alike.

The doctrine of binding precedent, stare, or judicial precedent, will be binding on a lower court than it. Under the doctrine of judicial precedent, courts are bound by the decision of their superior courts e.g. the High Court is bound by the previous decision of the Courts of Appeal and the House to Lords which is now Supreme Court of England after the Constitutional Reform Act 2005 and the Court of Appeal in bound by the previous decision of the House of Lords. Further, the courts are also bound by their own previous decision e.g. the Court of Appeal is bound by its previous decision, as states in Young v Bristol Aeroplane Co. Ltd [3] in 1944. The House of Lords stands at the summit of the English court structure; it was also bound by its previous decision until 1966, when the Lord Chancellor’s practice direction eradicated this.

The main objective of binding precedent is to provide certainty in law, to allow justice to be seen being done, to provide fairness, to save time and to preclude mistakes. This is the vertical application to the doctrine in England.

However there is also horizontal application. Some courts are not only bound by the decisions of their superior courts, but also by their own previous decisions. The House of Lords was bound by its own decisions until 1966. This practice has instigated in mid 19th century and reaffirmed in 1898 in London Tramways Co Ltd v London County Council [4] . In 1930 onwards criticism was increasing and finally in 1966 the practice statement of Lord Chancellor ‘Lord Gardiner’ eliminated the self-imposed rule. The reasons for freeing the House of Lords were to meet changing conditions. The house was now free to depart from its own previous decisions where it appeared right to do so. To avoid unfairness; they realized that injustice was being caused due to rigidity in the system, and further more deterring proper development of law. The third part of the statement emphasized that care should be taken when dealing with criminal, contract, fiscal matters, and of settlements of property.

The House of Lords refused to overrule its decisions merely because the decisions given were wrong. As in the decision in Redowling was wrong the House of Lords refused to change it.

In Food Corporation of India [5] 1988 the Lords refused to overrule Bremer Vulkan [6] . Lord Goff was of the view that the House of Lords should not review an overrule unless satisfied that it would be of significance to the resolution to the dispute in that instant case.

It took two years for the first overruling in 1968 in Conway v Rimmer [7] , when the Lords overruled Duncan. In 1979 the House of Lords overruled Congrave by the decision in Vesty. This demonstrated that the House of Lords would not hesitate to overrule even very old rules- Congrave had stood for 30 years and was related to the interpretation of statutes. In 1990 it overruled Anns [8] on the question of duty of care.

The House of Lords has been successful in correcting its previous mistakes and used its influence cautiously to develop law and avoid injustice to persist. House of Lords have to be careful regarding the changing of decisions even when found wrong; where contractual relations maybe effected, like in the case of Paal Wilson [9] , in which the overruling was of academic interests.

The second highest court in England is the Court of Appeal. The decisions of the Court of Appeal upon questions of law must be followed by Divisional Courts and courts of first instance, and, as a general rule, are binding on the Court of Appeal until a contrary determination has been arrived at by the House of Lords. [10] In the Court of Appeal the binding precedent applies vertically as well as horizontally. However there are three exceptions where the Court of Appeal is not bound by its own previous decisions. Where its decision conflicts with the Lords it must follow the decision of the Lords. Secondly, when Court of Appeal has to decide between previous conflicting decisions it may use either one. Thirdly where the decision was given per incuriam i.e. in the ignorance of law.

After the European Community Act 1972, Court of Appeal is to follow the decision of the European Community Law or with a later decision of the European Court of Justice, if the decision is in contradiction with their decision. A ruling of the European Court on a question of the interpretation of a Community treaty or the validity or interpretation of another Community instrument made at the request of a domestic court of a member state is strictly binding only on that domestic court in the case in which the request was made; it does not bind the domestic court in any other case, although if a judge is faced with a question of interpretation which has already been answered by the European Court in another case he ought to follow that answer, for the procedure is designed to safeguard the uniform judicial interpretation of Community law. The European Court has generally given only broad guidance on interpretation, leaving the domestic court to apply the interpretation to the particular case before it. However, the doctrine of binding precedent has now developed to the stage where the European Court has held, without seeking to derogate from a domestic court's power to refer a case to it, that national courts should regard themselves as bound by decisions of the European Court relating to the interpretation of particular instruments or other matters of Community law. [11]

The House also considered the extent to which the domestic courts are bound to follow a domestic precedent which appears to be inconsistent with Strasbourg authority and expressed the view that certainty is best achieved by adhering, even in the Convention context, to the rules of precedent. It is the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be inconsistent with Strasbourg authority, they may express their views and give leave to appeal, in that way discharging their duty under the Human Rights Act 1998. [12]

There are two divisions in the Court of Appeal; the civil and the criminal. On the basis of R v Spencer [13] there is no difference regarding the validity of doctrine of binding precedent in both the divisions. In criminal division the doctrine is less rigidly applied, since greater flexibility is required to avert injustice, concerning individual’s liberty.

Lord Denning started his campaign in 1966, after the House of Lords freed themselves; he spoke against the doctrine in the Court of Appeal. He stated that Court of Appeal was not bound by the House of Lords, neither by its own previous decisions.

In Conway v Rimmer, he first attacked the doctrine of binding precedent in the Court of Appeal and said that the court was not bound by the decision of the House of Lords. Other judges did not support him. In Broome v Cassel [14] and Co. Lord Denning refused to follow, Rookes v Barnard that was a decision of the lords. For complying with the precedent Lord Hailsham castigated him. Again he launched The Court of Appeal refused to follow ‘Havana [15] ’, a decision of the Lords. Dennings’s attempts were brought to an end in ‘Paal Wilson’, when the lords said that Court of Appeal was bound by the decision of the lords. His second front was also resulted in a failure, since his brother did not support him e.g. Gallie v Lee [16] because the Lords declared that the Court of Appeal is bound by its own previous decisions. The matter was finally settled in Davis v Johnson [17] where the Lords held that the Court of Appeal is bound by its own previous decisions

The divisional court is bound by its own previous like the Court of Appeal. However, the decisions of the individual High Court judges are not binding on other judges but only bind on inferior courts. The High Court is bound by the decisions of the House of Lords, and the Court of Appeal and the Divisional courts. The High Court is although not bound by its own previous decision, since it would lead to confusion and uncertainty. The Crown Court, County Courts and Magistrates Courts are bound by the decision of the House of Lords, Court of Appeal and the High Court but they themselves do not lay down binding precedents.

The decision or judgment of a judge may fall into two parts: the ratio decidendi and obiter dictum. The ratio decidendi of a case is the principle of law on which the decision is based and is the binding part of a judicial decision. The House of Lords is entitled to question or limit a previous ratio decidendi of the House (1) where it is obscure; (2) where it is out of line with other authorities or established principles; and (3) where it is much wider than was necessary for the decision. Where there is no discernible ratio decidendi common to the majority of the House of Lords the reasoning accepted in a long line of cases before that decision will be adopted by the House. Where too rigid an adherence to precedent may lead to injustice in a particular case and an undue restriction of the proper development of the law, the House of Lords may depart from its previous decisions when it appears right to do so. [18]

An obiter dictum is a legal opinion stated by a judge that is not necessary for his or her conclusion (something said by the way) and is not binding in later cases. However, an obiter dictum may be of persuasive authority in later cases.

There are many benefits and shortcomings of binding precedents.

It saves time of the judge, lawyers, and clients, since the cases do not have to be reargued. Conclusion can be given without much consideration. Doctrine of binding precedent creates certainty in the laws which very important. It ensures impartiality, since the judge must follow the precedent. If he tries to distinguish the undistinguishable his attempt will be obvious. Cases are not subject to judge own viewpoint, rather on material facts. If the facts are the same, the same outcome will occur.

Lord McMillan in Birch v Brown said that precedents should be used as “stepping stones" rather than halting places. A precedent may provide justice in one case while injustice in another one. Binding precedent may lead to rigidity and inflexibility. It may be responsible for a bad decision to last too long. The courts at time leave the case to the parliament to solve the problem e.g. the delay in recognizing rape within marriage, which was only recognized in 1992, in R v R [19] .

In the end it may be said that retaining the doctrine of binding precedent is desirable but the Court of Appeal needs to have a greater freedom then at present. Certainty is surly desirable but as Professor Good Hart said only to a certain extent.

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